Lexploria

EUROPEAN COMMISSION OF HUMAN RIGHTS

Application No. 16213/90

Susanna BURGHARTZ and Albert SCHNYDER BURGHARTZ

against

SWITZERLAND

REPORT OF THE COMMISSION

(adopted on 21 October 1992)

TABLE OF CONTENTS

page

I. INTRODUCTION

(paras. 1 - 14) . . . . . . . . . . . . . . . . . . . . . . . 1

A. The application

(paras. 2 - 4) . . . . . . . . . . . . . . . . . . . . . 1

B. The proceedings

(paras. 5 - 9) . . . . . . . . . . . . . . . . . . . . . 1

C. The present Report

(paras. 10 - 14) . . . . . . . . . . . . . . . . . . . . 2

II. ESTABLISHMENT OF THE FACTS

(paras. 15 - 35). . . . . . . . . . . . . . . . . . . . . . . 3

A. The particular circumstances of the case

(paras. 15 - 29) . . . . . . . . . . . . . . . . . . . . 3

1. Proceedings before the cantonal authorities

(paras. 15 - 20) . . . . . . . . . . . . . . . . . 3

2. Judgment of the Federal Court of 8 June 1989

(paras. 21 - 29) . . . . . . . . . . . . . . . . . 3

B. Relevant domestic law and practice

(paras. 30 - 35) . . . . . . . . . . . . . . . . . . . . 5

III. OPINION OF THE COMMISSION

(paras. 36 - 73) . . . . . . . . . . . . . . . . . . . . . . 8

A. Complaints declared admissible

(para. 36) . . . . . . . . . . . . . . . . . . . . . . . 8

B. Points at issue

(para. 37) . . . . . . . . . . . . . . . . . . . . . . . 8

C. Article 14 of the Convention taken together with

Article 8

(paras. 38 - 69) . . . . . . . . . . . . . . . . . . . . 8

Conclusion

(para. 69) . . . . . . . . . . . . . . . . . . . . . . .12

D. Article 8 of the Convention

(paras. 70 - 71) . . . . . . . . . . . . . . . . . . . .12

Conclusion

(para. 71) . . . . . . . . . . . . . . . . . . . . . . .12

E. Recapitulation

(paras. 72 - 73) . . . . . . . . . . . . . . . . . . . .12

PARTLY DISSENTING OPINION OF MM. C.A. NØRGAARD, G. JÖRUNDSSON,

A.S. GÖZÜBÜYÜK, A. WEITZEL AND B. MARXER. . . . . . . . . . . . . .13

OPINION DISSIDENTE DE M. J.-C. GEUS . . . . . . . . . . . . . . . .15

APPENDIX I: HISTORY OF THE PROCEEDINGS . . . . . . . . . . . .16

APPENDIX II: DECISION ON THE ADMISSIBILITY. . . . . . . . . . .17

I. INTRODUCTION

1. The following is an outline of the case as submitted to the

European Commission of Human Rights, and of the procedure before the

Commission.

A. The application

2. The first applicant, born in 1956, has dual Swiss and German

nationality. The second applicant, born in 1956, is a Swiss citizen.

The applicants, a married couple, are both historians residing in Basel

in Switzerland. Before the Commission the applicants are represented

by Ms. E. Freivogel, a lawyer practising at Binningen in Switzerland.

3. The application is directed against Switzerland whose Government

are represented by their Deputy Agent, Mr. Ph. Boillat, Head of the

European law and International Affairs Section of the Federal Office

of Justice.

4. The applicants complain that the second applicant, who has agreed

to use the wife's maiden name as the family name, is denied the right

to put his previous name before the family name. The applicants submit

that this amounts to discrimination based on sex since a woman who

after marriage has the husband's name as the family name may put her

previous name before the family name. The applicants rely on Article 8

of the Convention and on Article 14 of the Convention taken together

with Article 8.

B. The proceedings

5. The application was introduced on 26 January 1990 and registered

on 26 February 1990.

6. On 8 April 1991 the Commission decided to communicate the

application to the respondent Government and invite them to submit

written observations on the admissibility and merits of the

application.

7. The Government's observations were received by letter dated

20 June 1991. The applicants' observations in reply are dated

30 September 1991.

8. On 19 February 1992 the Commission declared the application

admissible.

9. After declaring the case admissible, the Commission, acting in

accordance with Article 28 para. 1 (b) of the Convention, also placed

itself at the disposal of the parties with a view to securing a

friendly settlement of the case. In the light of the parties'

reaction, the Commission now finds that there is no basis on which such

a settlement can be effected.

C. The present Report

10. The present Report has been drawn up by the Commission in

pursuance of Article 31 of the Convention and after deliberations and

votes, the following members being present:

MM. C.A. NØRGAARD, President

S. TRECHSEL

F. ERMACORA

E. BUSUTTIL

G. JÖRUNDSSON

A.S. GÖZÜBÜYÜK

A. WEITZEL

J.-C. SOYER

H.G. SCHERMERS

H. DANELIUS

Mrs. G.H. THUNE

Sir Basil HALL

MM. F. MARTINEZ

C.L. ROZAKIS

Mrs. J. LIDDY

MM. L. LOUCAIDES

J.-C. GEUS

M.P. PELLONPÄÄ

B. MARXER

11. The text of this Report was adopted on 21 October 1992 and is now

transmitted to the Committee of Ministers of the Council of Europe, in

accordance with Article 31 para. 2 of the Convention.

12. The purpose of the Report, pursuant to Article 31 of the

Convention, is:

i) to establish the facts, and

ii) to state an opinion as to whether the facts found disclose a

breach by the State concerned of its obligations under the

Convention.

13. A schedule setting out the history of the proceedings before the

Commission is attached hereto as Appendix I and the Commission's

decision on the admissibility of the application as Appendix II.

14. The full text of the parties' submissions, together with the

documents lodged as exhibits, are held in the archives of the

Commission.

II. ESTABLISHMENT OF THE FACTS

A. The particular circumstances of the case

1. Proceedings before the cantonal authorities

15. The applicants have resided in Basel since 1975. Before their

marriage in 1984, the first applicant's name was Susanna Maria Simone

Burghartz; the second applicant's name was Albert Johann Schnyder.

16. In 1984 the applicants married in the Federal Republic of

Germany. In accordance with German law, the wife's name was chosen as

the family name. The second applicant declared in addition that he

would put his own name before the family name. After the marriage,

therefore, the first applicant bore in the Federal Republic of Germany

the name Susanna Burghartz, the second applicant the name Albert

Schnyder Burghartz.

17. When the Swiss Civil Status Registry (Zivilstandsamt) recorded

as the applicants' family name Schnyder, the applicants requested the

Council of State (Regierungsrat) of the Canton of Basel-Landschaft to

be allowed to adopt Burghartz as the family name and Schnyder Burghartz

as the second applicant's name. This request was refused by the

Council of State on 6 November 1984.

18. On 5 October 1984 the Swiss Civil Code (Zivilgesetzbuch) was

amended with regard to the effects of marriage, inter alia as regards

the family name of a married couple. The amendment entered into force

on 1 January 1988.

19. On 26 October 1988 the applicants requested the Department of

Justice (Justizdepartement) of the Canton of Basel-Stadt to be allowed

to adopt as the family name Burghartz and to permit the second

applicant to put his birth name before the family name, i.e. Schnyder

Burghartz.

20. On 12 December 1988 the Department of Justice refused this

request. It found that the applicants had not indicated any serious

disadvantages deriving from the family name Schnyder. Moreover, the

Swiss Civil Code did not contain transitional provisions with regard

to Section 30 para. 2 of the Code (see Relevant domestic law and

practice). Thus, the applicants could not on the basis of this

provision, after their marriage, request the adoption of the wife's

name as the family name. On the other hand, according to the text of

Section 160 para. 2 of the Civil Code the possibility for the wife to

put her name before the husband's name was clearly limited to the wife,

and the husband had no corresponding right.

2. Judgment of the Federal Court of 8 June 1989

21. The applicants then filed an appeal (Berufung) with the Federal

Court (Bundesgericht). In their appeal they complained in particular

of a violation of Sections 30 and 160 of the Civil Code as well as

Section 8a of the Final Provisions (Schlusstitel) to the Civil Code.

The applicants also invoked Section 4 para. 2 of the Federal

Constitution.

22. The Federal Court gave its decision on 8 June 1989; the decision

was served on the applicants on 27 July 1989.

23. The Federal Court upheld the appeal insofar as the applicants

complained that they were not allowed to adopt the wife's maiden name

as the family name.

24. Thus, the Court found on the one hand that Section 30 para. 2 of

the Civil Code was inapplicable as it clearly only referred to fiancés,

not to married persons. On the other hand the Court considered that

in the present case there were important reasons within the meaning of

Section 30 para. 1 of the Swiss Civil Code. The Court noted inter alia

the proximity of Basel to the Federal Republic of Germany and the

particular situation of the applicants, namely their age and

professional sphere in the light of which the decision of the

Department of Justice could not be considered satisfactory. The Court

therefore determined that the applicants were henceforth permitted to

adopt Burghartz as the family name.

25. However, the Federal Court dismissed the appeal insofar as the

applicants requested, with reference to Section 160 para. 2 of the

Civil Code, that the second applicant be allowed to put his former name

before the family name, i.e. Schnyder Burghartz.

26. The Court recalled the preparatory materials of Section 160

para. 2 of the Civil Code. It noted that from the outset a free choice

between the husband's and the wife's name had been ruled out as it

would have run against tradition while still forcing one spouse to give

up his or her name. Parliament also did not accept the free choice of

the wife to take on the husband's name, or to keep her own name, as

this would have abandoned the unity of the name in the family. The

purpose of the present Article 30 para. 2 of the Civil Code was to

facilitate the possibility for a couple to employ the wife's name as

the family name. Parliament furthermore intentionally reserved to

women the right to put the previous name before the family name.

27. The decision of the Federal Court continues:

"The meaning, purpose and also the history of Section 160 para. 2

of the Civil Code all militate against an interpretation running

counter to the text and thus against its implicit application to

the husband who agreed to adopt as the family name the woman's

name. It is understandable that the applicants invoke the

principle of equality and argue in favour of an interpretation

conforming with the Constitution ... In addition, it can hardly

be overlooked that the man, who loses his original name due to

the choice according to Section 30 para. 2 of the Civil Code or

the change according to Section 30 para. 1 of the Civil Code,

will also be interested, for reasons connected with his right of

personality, in having his previous name put first. This can

nevertheless not alter the fact that the original view expressed

in the Council of State, according to which Section 160 para. 2

should be drafted independently of the sex, was not taken up

despite intensive discussion in both Chambers. Thus, seeing that

the legislator, by adopting Section 160 para. 2 in its present

wording, has in the end clearly decided in favour of a solution

specifically making a distinction on the basis of sex, an

interpretation relying primarily on Article 4 para. 2 of the

Federal Constitution is excluded."

"Sowohl Sinn und Zweck als auch die Entstehungsgeschichte des

Art. 160 Abs. 2 ZGB sprechen gegen eine dem Wortlaut

zuwiderlaufende Auslegung und somit gegen dessen sinngemässe

Anwendung auf den Mann, welcher der Wahl des Frauennamens zum

Familiennamen zugestimmt hat. Zwar ist verständlich, dass sich

die Berufungskläger auf den Grundsatz der Rechtsgleichheit

berufen und einer verfassungskonformen Auslegung das Wort reden

... Ueberdies lässt sich kaum übersehen, dass auch der Mann, der

seinen angestammten Namen durch die Wahl gemäss Art. 30 Abs. 2

ZGB oder die Abänderung gemäss Art. 30 Abs. 1 ZGB verliert,

ebenfalls aus Gründen des Persönlichkeitsrechts am Voranstellen

seines bisherigen Namens interessiert ist. Das vermag aber daran

nichts zu ändern, dass die ursprünglich im Ständerat vertretene

Auffassung, wonach Art. 160 Abs. 2 ZGB geschlechtsunabhängig

ausgestaltet werden sollte, trotz eingehender Diskussion in

beiden Räten nicht mehr aufgegriffen worden ist. Hat sich der

Gesetzgeber mit der Aufnahme des Art. 160 Abs. 2 ZGB in seiner

heutigen Formulierung letzlich eindeutig für eine ge-

schlechtsspezifische Lösung entschieden, kommt eine in erster

Linie von Art. 4 Abs. 2 BV ausgehende Auslegung nicht in Frage."

28. The Court concluded that, even if this part of the appeal was to

be dismissed, the applicant could in practice add his own name as an

"alliance name" (Allianzname, see below para. 31), or privately put his

name before the family name.

29. According to the applicants' submissions, the second applicant's

original name no longer appears in many official documents and

registers. His university also refuses to issue the certificate of his

doctoral thesis with his previous name put before his family name.

Thus, the connection of identity to his previous publications is no

longer maintained.

B. Relevant domestic law and practice

30. Section 4 para. 2 of the Swiss Federal Constitution states:

"Men and women have equal rights. The law ensures their equality

particularly in the family, in education and at work. Men and

women are entitled to equal pay for equal work."

"Mann und Frau sind gleichberechtigt. Das Gesetz sorgt für ihre

Gleichstellung, vor allem in Familie, Ausbildung und Arbeit.

Mann und Frau haben Anspruch auf gleichen Lohn für gleichwertige

Arbeit."

31. Before the Swiss Civil Code was revised, it was, and continues

to be, an established custom in Switzerland for a married couple to be

able to employ an "alliance name" (Allianzname). Thus, if the

husband's name constitutes the family name, the wife may add her name

with a hyphen (e.g. before marriage Mr. Meier und Miss Müller; after

marriage Mr. and Mrs. Meier-Müller). The Federal Court has confirmed

this custom, while nevertheless stating that "ce nom composé ne peut

pas être considéré comme le nom de famille légal" (see Arrêts du

Tribunal Fédéral 110 II 99).

32. According to the revised Swiss Civil Code, if the husband's name

constitutes the family name, the wife may put her name before the

family name (e.g. before marriage Mr. Meier and Miss Müller; after

marriage Mr. Meier and Mrs. Müller Meier). The relevant provision is

Section 160 which states:

"1. The husband's name shall be the spouses' family name.

2. However, the bride may declare before the civil registrar

that she wishes to have her previous name put before the family

name."

"1. Der Name des Ehemannes ist der Familienname der Ehegatten.

2. Die Braut kann jedoch gegenüber dem Zivilstandsbeamten

erklären, sie wolle ihren bisherigen Namen dem Familiennamen

voranstellen."

33. The revised Civil Code also provides for the possibility at issue

in the present case under certain conditions to choose the name of the

wife and not of the husband as the family name (e.g. before marriage

Mr. Meier and Miss Müller; after marriage Mr. and Mrs. Müller) and

generally to ask for a change of name. The relevant provision is

Section 30 which states:

"1. The Government of the Canton of residence may permit a

person to change his or her name, if there are important reasons.

2. The request of the fiancés to have as from their marriage

the wife's name as the family name, must be permitted if there

are reasons commanding respect."

"1. Die Regierung des Wohnsitzkantons kann einer Person die

Änderung des Namens bewilligen, wenn wichtige Gründe vorliegen.

2. Das Gesuch der Brautleute, von der Trauung an den Namen der

Ehefrau als Familiennamen zu führen, ist zu bewilligen, wenn

achtenswerte Gründe vorliegen."

34. Section 8a of the Final Provisions (Schlusstitel) to the Civil

Code provides that a woman who married before revision of the Civil

Code may, within a period of one year after the new law enters into

force, declare before the civil registrar that she will put the name

which she had before marriage before the family name.

35. Children bear the parents' family name (Section 270 para. 1 of

the Civil Code). If the husband's name constitutes the family name,

and the wife puts her name before the family name, the child's name

will not be affected. If the wife's name constitutes the family name,

this will become the child's name.

III. OPINION OF THE COMMISSION

A. Complaints declared admissible

36. The Commission has declared admissible the applicants' complaints

that the second applicant, who uses the wife's maiden name as the

family name, is denied the right to put his previous name before the

family name; and that this constitutes discrimination based on sex

since a woman who after marriage has the husband's name as the family

name may put her previous name before the family name.

B. Points at issue

37. Accordingly, the issues to be determined are:

- whether there has been a violation of Article 14 of the

Convention taken together with Article 8 (Art. 14+8); and

- whether there has been a violation of Article 8 (Art. 8) of the

Convention taken alone.

C. Article 14 of the Convention taken together with Article 8

(Art. 14+8)

38. The Commission finds that the application essentially concerns

a complaint of difference in treatment based on sex and thus falls to

be examined under Article 14 of the Convention taken together with

Article 8 (Art. 14+8).

39. Article 8 (Art. 8) of the Convention states:

"1. Everyone has the right to respect for his private and

family life, his home and his correspondence.

2. There shall be no interference by a public authority with

the exercise of this right except such as is in accordance with

the law and is necessary in a democratic society in the interests

of national security, public safety or the economic well-being

of the country, for the prevention of disorder or crime, for the

protection of health or morals, or for the protection of the

rights and freedoms of others."

40. Article 14 (Art. 14) of the Convention states:

"The enjoyment of the rights and freedoms set forth in this

Convention shall be secured without discrimination on any ground

such as sex, race, colour, language, religion, political or other

opinion, national or social origin, association with a national

minority, property, birth or other status."

41. The first question to be considered is whether Article 8

(Art. 8) of the Convention is applicable in the present case.

42. The applicants submit that the right to respect for private life

within the meaning of Article 8 (Art. 8) comprises the use of a

person's name. In the case of the second applicant the function of

identity which his name provided has been lost. The fact that the

second applicant agreed to the first applicant's name as the family

name does not mean that he renounced all rights. In fact, he only

agreed to accept that family name if he could put his own name first.

In the applicants' view it is insufficient if the second applicant can

privately - for instance on his letter box - use the name he wishes,

since in the professional and public sphere the legal name must be

employed.

43. The Government contend that Article 8 (Art. 8) is not applicable

to the present case and refer to the Commission's case-law (see

No. 8042/77, Hagmann-Hüsler v. Switzerland, Dec. 15.12.77, D.R. 12

p. 202). Thus, the Government recall the Federal Court's decision of

8 June 1989 according to which the second applicant is free in his

daily life, even in his identity papers, to use an "alliance name" or

privately to put his name before the family name. The Government see

a confirmation hereof in the fact that the second applicant in his

application to the Commission has used the name Schnyder Burghartz.

44. The Commission recalls that in two cases concerning the use of

a name it found no violation of Article 8 (Art. 8). The Hagmann-Hüsler

case referred to by the Government concerned a parliamentary

candidate's unsuccessful request to run for parliament under the name

known to the public, namely her maiden name. The Commission was

satisfied that the applicant had a "reasonable possibility of precise

identification available to her" since she could add her maiden name

after the family name as an "alliance name" (see loc. cit. p. 205).

45. In another case the applicant, who had the name of her divorced

husband, was refused a name used by ascendants two hundred years ago.

The Commission saw no lack of respect for, and therefore no

interference with, the rights under Article 8 para. 1 (Art. 8-1) of the

Convention since the applicant had employed her former husband's name

for over 20 years and had moreover not availed herself of the

possibility of taking back her maiden name (see No. 16878/90, Boij v.

Sweden, Dec. 29.6.1992, to be published in D.R.).

46. Moreover, the Commission has recently declared admissible, as

raising complex questions of law and fact, an application concerning

the refusal of permission to change a surname (No. 18131/91, S. v.

Finland, Dec. 29.6.92).

47. The Commission considers that the right to respect for private

life as enshrined in Article 8 para. 1 (Art. 8-1) of the Convention

ensures a sphere within which everyone can freely pursue the

development and fulfilment of the personality. The right to develop

and fulfil one's personality necessarily comprises the right to

identity and, therefore, to a name.

48. In the present case the Government refer to a practice in

Switzerland, enabling the second applicant to use an "alliance name",

or informally in daily life to put his or her own name before the

family name.

49. The Commission observes that the Federal Court itself drew a

distinction between the practice of using the "alliance name" and the

relevance of a formal legal family name (see above para. 31). The

Swiss Parliament also regarded such a practice as insufficient. Thus,

it found it necessary formally to enact provisions determining the

husband's name or, under certain conditions, the wife's name as the

family name; and enabling the wife to put her name before the family

name (Sections 160 para. 2 and 30 para. 2 of the Civil Code,

respectively).

50. Furthermore, when the applicants filed a request formally to be

permitted to put the second applicant's name before the family name,

the authorities did not treat the request as unnecessary. Rather, the

request was dealt with thoroughly and at different levels, though once

the Federal Court had dismissed the request, it pointed out that the

applicant could informally use the names he wished.

51. In the Commission's opinion, Article 8 (Art. 8) of the Convention

is therefore applicable in the present case.

52. The Commission must now examine whether there has been a

violation of Article 14 taken together with Article 8 (Art. 14+8) of

the Convention.

53. The applicants submit that if the husband's name is employed as

the family name, the wife may put her own name before the family name.

However, if the wife's name is employed as the family name, the husband

is not granted this possibility. They complain of sex discrimination

in respect of which there is no objective justification.

54. The Government contend that the legislation complained of was

neither conceived nor formulated to ensure the equality of sexes but

aims at manifesting the unity of the family. The Government describe

the preparatory materials leading to the legislation concerned, as

explained by the Federal Court in its decision (see above para. 26).

It transpires therefrom that parliament did not want a free choice of

names, as this would have abandoned the principle of the unity of the

family name. The Government submit that the unity of the family name

in turn manifests the unity of the family.

55. The Government furthermore submit that the wife's right to put

her name before the family name aims at alleviating the results of

having a name imposed on her. This need does not exist if, as in the

applicants' case, there is a voluntary change of name. The change of

name is not imposed, and it appears logical to treat the two situations

differently. The Government contrast the legal provisions at issue

with other provisions on the relations between husband and wife which

are formulated in a neutral and egalitarian manner.

56. The Commission recalls that Article 14 (Art. 14) of the

Convention complements the other substantive provisions of the

Convention and the Protocols. It has no independent existence since

it has effect solely in relation to "the enjoyment of the rights and

freedoms" safeguarded by those provisions. Although the application

of Article 14 (Art. 14) does not necessarily presuppose a breach of

those provisions, there is no room for its application unless the facts

at issue fall within the ambit of one or more of the latter (see Eur.

Court H.R., Abdulaziz, Cabales and Balkandali judgment of 28 May 1985,

Series A no. 94, p. 35 para. 71).

57. In the present case, the Commission has found that Article 8

(Art. 8) of the Convention is applicable (see above, para. 49). It

follows that Article 14 (Art. 14) is also applicable. The Commission

must now establish whether there was a difference of treatment.

58. The present case concerns the situation where, once a couple's

family name has been determined, only one spouse may put his or her

original name before the family name. Thus, if the husband's name is

the family name, the wife has the possibility to put her name first.

The husband may not do so, if the wife's name is chosen as the family

name. Hence, a distinction is made between husband and wife in respect

of the family name. The Commission, as the Swiss Federal Court before

it (see above para. 27), finds that there has been a difference of

treatment on the ground of sex.

59. For the purposes of Article 14 (Art. 14) of the Convention, a

difference of treatment is discriminatory if it has no objective and

reasonable justification, that is if it does not pursue a legitimate

aim or if there is not a reasonable relationship of proportionality

between the means employed and the aim sought to be realised. The

Contracting States enjoy a certain margin of appreciation in assessing

whether and to what extent differences in otherwise similar situations

justify a different treatment in law, but it is for the Convention

organs to give the final ruling in this respect (see Abdulaziz

judgment, loc. cit. p. 35 et seq., para. 72).

60. Moreover, the advancement of the equality of the sexes is today

a major goal in the member States of the Council of Europe. This means

that very weighty reasons would have to be advanced before a difference

of treatment on the ground of sex could be regarded as compatible with

the Convention (see Abdulaziz judgment, loc. cit. p. 38, para. 78).

61. The Commission has first considered the Government's contention

that the relevant legislation manifests the unity of the family.

62. The Commission observes that the flexibility provided today by

the Swiss Civil Code, in particular the possibility for the wife to put

the name before the family name, equally fails to manifest the unity

of the family. In any event, if one of the spouses puts his or her

name before the family name, the family name will continue to be

employed by both spouses, thus in fact preserving the unity of family.

Moreover, the spouses' children always bear the parents' family name

(see above, para. 35)

63. The Government also submit that since the husband's name is

normally imposed on the wife, it will alleviate her situation if she

can put her own name first. The husband who voluntarily accepts the

wife's name as the family name need not be afforded this possibility.

64. The Commission observes that under Swiss law spouses must have

reasons for choosing the wife's name as the family name, and the latter

will not lightly be admitted. In the present case the Department of

Justice of the Canton of Basel-Stadt originally refused the applicants'

request; subsequently the Federal Court saw important reasons to

determine the wife's name as the family name, and also considered that

the husband would have an interest in putting his name first. The

Commission thus finds that, where compelling grounds lead a married

couple to choose the wife's name as the family name, a difference in

treatment cannot be justified by the voluntary character of the choice.

65. The Commission has noted further reasons advanced by the domestic

authorities for maintaining the different treatment. Thus, it notes

the Swiss legislator's intention to remain within the bounds of

tradition.

66. However, in view of the importance of the advancement of the

equality of sexes today in the member States of the Council of Europe,

the Commission finds that tradition in itself no longer suffices to

justify the difference of treatment on the ground of sex complained of

in the present case.

67. Finally, the Commission notes the Federal Court's judgment of

8 June 1989. Therein, the Federal Court acknowledged a difference of

treatment in the present case on account of the applicants' sex, but

found that it was bound by the Swiss Constitution to apply the Swiss

Civil Code and could not consider grounds of justification (see above,

para. 27).

68. It follows that no objective and reasonable grounds have been

shown which could justify the difference of treatment complained of.

Conclusion

69. The Commission concludes, by 18 votes to 1, that there has been

a violation of Article 14 taken together with Article 8 (Art. 14+8) of

the Convention.

D. Article 8 (Art. 8) of the Convention

70. Having found a violation of Article 14 of the Convention taken

together with Article 8 (Art. 14+8), the Commission finds it

unnecessary to examine the case under Article 8 (Art. 8) of the

Convention taken alone.

Conclusion

71. The Commission concludes, by 13 votes to 6, that it is not

necessary to examine the case under Article 8 (Art. 8) of the

Convention taken alone.

E. Recapitulation

72. The Commission concludes, by 18 votes to 1, that there has been

a violation of Article 14 taken together with Article 8 (Art. 14+8) of

the Convention (see above, para. 69).

73. The Commission concludes, by 13 votes to 6, that it is not

necessary to examine the case under Article 8 (Art. 8) of the

Convention taken alone (see para. 71).

Secretary to the Commission President of the Commission

(H.C. KRÜGER) (C.A. NØRGAARD)

PARTLY DISSENTING OPINION OF MM. C.A. NØRGAARD, G. JÖRUNDSSON,

A.S. GÖZÜBÜYÜK, A. WEITZEL AND B. MARXER

We agree with the majority of the Commission that there has been

a violation of Article 14 of the Convention taken together with

Article 8. However, we disagree as to the conclusion to be drawn in

respect of Article 8 of the Convention. In particular, we consider

that the case raises issues which should be examined independently

under Article 8 of the Convention.

Without doubt, Article 8 of the Convention was applicable (see

above, paras. 41 et seq.). We also note that the applicants' request

for permission to put the second applicant's name before the family

name did not relate to one particular incident but concerned their

situation in general.

As a result, the restrictions imposed on the applicants were

sufficiently substantial to warrant the conclusion that there has been

an interference with the applicants' right to respect for private life

under Article 8 para. 1 of the Convention.

Next, it must be examined whether the interference satisfied the

conditions of Article 8 para. 2 of the Convention.

We note that the authorities, when refusing the applicants'

request to put the second applicant's name before the family name,

relied on Sections 30 and 160 of the Swiss Civil Code. The

interference was therefore "in accordance with the law" within the

meaning of Article 8 para. 2 of the Convention.

Moreover, inasmuch as the legislation concerned aimed at securing

the unity of the family, the interference may be regarded as aiming at

"the prevention of disorder" within the meaning of Article 8 para. 2

of the Convention.

There remains the question whether the interference was

"necessary in a democratic society" within the meaning of Article 8

para. 2 of the Convention.

The applicants submit that the Swiss authorities's refusal to let

the second applicant put his name before the family name was an

unjustified and disproportionate interference. The second applicant's

original name no longer appears in many official documents and

registers. His university also refuses to issue the certificate of his

doctoral thesis with his previous name put before his family name.

Thus, the connection of identity to his previous publications is no

longer maintained.

The Government describe the preparatory materials leading to the

legislation concerned, as explained by the Federal Court in its

decision (see above para. 26). It transpires therefrom that parliament

did not want a free choice of names, as this would have abandoned the

principle of the unity of the family name. The Government submit that

the unity of the family name in turn manifests the unity of the family.

According to the Convention organs' case-law, the notion of

necessity implies that the interference corresponds to a pressing

social need and, in particular, that it is proportionate to the

legitimate aim pursued. In determining whether an interference was

"necessary in a democratic society" the Convention organs will also

take into account that a margin of appreciation is left to the

Contracting States (see Eur. Court H.R., Olsson judgment of

24 March 1988, Series A no. 130, p. 31 et seq., para. 67).

In the present case we consider, on the one hand, that the State

has a legitimate interest in preserving the unity of the family, and

in employing legislation in order to manifest such unity.

It is true that the Swiss Civil Code permits some flexibility in

determining the family name, thus to some extent calling in question

the principle of the unity of the family. However, we note the Swiss

legislator's intention to remain within tradition and not to provide

an entire freedom, in particular by not letting the husband put his

name before the family name.

On the other hand, we have considered the applicants' interest

in the second applicant putting his name before the family name. They

claim in particular that the second applicant's name no longer appears

in various documents and registers. However, we find that these

difficulties, which result in the first place from the applicants'

decision to adopt the first applicant's maiden name as the family name,

may cause inconveniences, but they do not appear insurmountable. The

same holds true in respect of the alleged difficulties concerning the

second applicant's academic career. He is not prevented in future from

further developing his academic reputation, and showing the connection

with his previous publications, for instance by referring in his new

publications to his previous name before marriage.

In our opinion, the legislation concerned, in attempting to

strike a balance between the general interest in preserving the unity

of the family and the interests of the individual, did not, in its

application in the present case, transgress the margin of appreciation

left to the Contracting States under the Convention.

We are therefore satisfied that the interference at issue may be

regarded as "necessary in a democratic society" within the meaning of

Article 8 of the Convention.

In our view, there has, therefore, been no violation of Article 8

of the Convention.

OPINION DISSIDENTE DE M. J.C. GEUS

Il est incontestable qu'il existe des circonstances dans

lesquelles le port d'un nom ou d'un prénom déterminé peut avoir des

répercussions sur la vie privée de quelqu'un (transsexualisme, nom de

famille ridicule ou imprononçable etc.).

De telles circonstances sont inexistantes en l'espèce (voir avis

de la Commission, par. 20). L'inconvénient mentionné au paragraphe 29

de l'avis de la Commission ne résulte en effet que du changement de nom

voulu par le requérant.

Dès lors, l'article 8 de la Convention ne saurait être en cause

que si le port d'un nom de famille faisait partie, par essence, de la

sphère de la vie privée d'une personne.

J'estime pour ma part que le patronyme d'une personne est sa

caractéristique la plus manifestement publique puisqu'elle permet son

identification par tous, pouvoirs publics et personnes privées, et que

l'on ne saurait prétendre que cet élément d'identification fasse partie

de la sphère d'intimité d'un individu.

Si le domaine de la vie privée protégée par l'article 8 de la

Convention est plus large que celui de la privacy anglo-saxonne, et

permet à toute personne d'entretenir des relations avec autrui,

singulièrement dans le domaine émotif, afin de développer sa propre

personnalité, il faut néanmoins rappeler que la vie privée cesse là où

l'individu entre en contact avec la vie publique (Commission, rapport

du 12 juillet 1977, affaire Brüggeman et Scheuten, D.R., vol. 10,

p. 100, par. 55 et suivants).

Enfin, la considération selon laquelle le droit de développer sa

personnalité comprend nécessairement le droit à l'identité, et donc Ã

un nom, (avis, par. 45) est exacte mais ne paraît pas démontrer que la

Convention garantit à chacun de choisir librement un nom de famille et

d'en changer au gré de ses états d'âme.

Aucun droit protégé n'étant en cause, l'article 14 n'a donc pas

pu être violé.

APPENDIX I

HISTORY OF PROCEEDINGS

Date Item

_________________________________________________________________

26 January 1990 Introduction of the application

26 February 1990 Registration of the application

Examination of Admissibility

8 April 1991 Commission's decision to invite the Government

to submit observations on the admissibility and

merits of the application

20 June 1991 Government's observations

30 September 1991 Applicant's observations in reply

19 February 1992 Commission's decision to declare the application

admissible

Examination of the merits

19 February 1992) Commission's consideration of the state

4 July 1992 ) of proceedings

19 October 1992 Commission's deliberations on the merits and

final vote

21 October 1992 Adoption of the Report

Menu

BURGHARTZ v. SWITZERLAND

BURGHARTZ v. SWITZERLAND

LEXI